Selected Provisions

Check out the provision above. It was put on Twitter by Aiden Durham, who said, “There’s gotta be a better way?!” Filthy McNasty tagged me in the ensuing thread, so here we are. The extract above is from an Arizona contract. Arizona has a “strict blue pencil” approach to enforcing post-employment restrictions on employees (generally known as “restrictive covenants”), which … Read More

"Crap! We added 'pandemic' to our force majeure provisions, but no one told us to add 'Arctic outbreak' or whatever the freak you call this!" Drafters are always refighting the last FM war. Instead, play a long game and lose the parade of horribles. See https://t.co/lLkFG3UM0p https://t.co/z9T1THoHJ8 — Ken Adams (@AdamsDrafting) February 20, 2021 That’s it. That’s the post.

In this 2012 blog post I explain why the phrase personal delivery is confusing. My conclusion: So the moral of this case is, Never say in a contract “deliver X personally,” “by personal delivery,” “personal delivery,” or any variant. But in this earlier post on the subject, I say this: Instead, what the phrase “personal delivery” seeks to convey is … Read More

After doing these three posts about stuff you find in jurisdiction provisions, I have just one more topic to discuss, at least for now—namely this kind of thing: Each party hereby waives [or agrees not to assert] any objection that those courts represent an inconvenient forum [or inconvenient venue]. I’ve decided to call such provisions “no-objecting-to-inconvenient-forum provisions.” You could use … Read More

As you will have noticed from this blog post and this blog post, I’ve been contemplating contract provisions that seek to specify which courts would resolve disputes between the parties. In the process, I’ve observed that people appear uncertain about how concepts of venue and jurisdiction relate to this issue. Inconsistent Terminology Some provisions use just jurisdiction: Each party hereby … Read More

For LegalSifter, I’ve been taking a closer look at jurisdiction provisions. I’ve decided that they represent a dose of concentrated fucked-upness on a par with governing-law provisions. The Context The first shoe dropped last year, in my post Stop Using Consent-to-Jurisdiction Provisions!  It says you should stop using this sort of thing: Each party hereby submits to the jurisdiction of … Read More

In notices provisions in contracts, you say what’s required to give valid notice. Among other things, that involves specifying what one or more methods have to be used. The standard alternatives are giving notice by hand, by some form of mail, by FedEx or some equivalent, or by email. Recently I’ve considered providing for email as the only means of … Read More

A force majeure provision in a contract expresses that if something sufficiently bad happens that isn’t under a party’s control, it would be appropriate to suspend performance. Given the coronavirus pandemic, a handful of readers suggested that I write something about force majeure provisions. Initially I demurred—I thought I’d already had my say in previous blog posts. Also, I wasn’t … Read More

Regular readers will know that I’m an advisor to LegalSifter, the artificial-intelligence-plus-expertise company that helps with review of the other side’s draft. In that capacity, I help decide what issues to look for, and I figure out how those issues are expressed in contracts. In doing that work, I get to explore systematically all sorts of topics. Recently, one such … Read More